Competing bills in the Washington State House - one Republican-sponsored and another that is Democrat-sponsored - seek to address gender pay inequity in the workforce. The competing measures stem from similar concerns, but differ markedly in some respects. Photo: retailassociation.org

Dueling gender pay equity bills from Washington State House Republicans and Democrats are prompting a closer look at the best ways to calculate if, where and how salaries are being set unfairly for women, compared to men.

A Busy Backdrop

Pay disparities based on gender are already illegal under the 1963 federal Equal Pay Law, and the 1943 Washington State Equal Pay Act. The renewed gender pay equity push in Olympia comes in the wake of statewide voter approval of a minimum wage hike; plus a slew of worker-focused measures approved in Seattle. Also in the current landscape: a campaign in the legislature for expanded paid sick and family leave.

Against this backdrop, the more limited Republican pay equity bill provides a sharp counterpoint to the latest Democratic-sponsored measure.

Business associations and tech industry spokespersons backed Republican-sponsored HB 1447 during a public hearing of the House Labor and Workplace Standards Committee on the two bills, Tuesday, January 24.

They say it would provide clearly identifiable criteria for determining unequal pay, and would account for regional differences in pay for the same job. They take issue with HB 1506, advanced by State Rep. Tana Senn (D-41), saying it would create legal ambiguity, interfere with day-to-day operations, and expose employers to dual lawsuits.

Senn: State Pay Equity Law Needs Updating

This marks the third attempt by Senn to update the state Equal Pay Act. In 2015, an earlier Senn bill for gender pay equity, HB 1646, passed Labor and Workplace Standards and later the House, but failed to clear the Senate. It was reintroduced in 2016 and followed the same trajectory.

Senn told committee members January 24 her “gender-neutral” 2017 bill would provide badly-needed updates to the state pay equity law. “Despite Washington State early leadership on this issue…we have since fallen behind,” Senn said. “Whatever we do, we don’t want to make it harder for women to get equal pay, but rather to help reduce the gap.”

Supporting HB 1506, Washington State Organizer for Moms Rising, Maggie Humphreys, told panel members that “women should not have to win the ‘boss lottery’ to get equal pay.”

Some Common Ground

The competing bill, HB 1447, is sponsored by State Rep. Vicki Kraft (R-17). It and Senn’s bill share several key provisions. Both would amend the state pay equity law to prohibit wage or compensation discrimination based on gender, for jobs that according to a House bill analysis, require “equal skill, effort, and responsibility, and (are) performed under similar working conditions.” Exempt would be certain pay scales, including those based on merit, seniority, or employee productivity.

“Whether you’re male or female…you should get the same pay,” Kraft said to committee members. She added that a worker’s pay level “should really come down to your level of experience.” The bills would also protect workers from employer retaliation for inquiring about the wages of others, or discussing their own pay.

Differences Evident

However, the bills vary significantly on some provisions, according to a legislative staff analysis comparing the two. HB 1447 requires a worker’s consent before their wages are discussed by the employer with co-workers. That provision is not found in HB 1506.

Senn’s bill also prohibits “less favorable employment opportunities,” which Bob Battles says would “end up interfering with the day to day operations of a business.” He is the director of government affairs on workplace issues for the Association of Washington Business (AWB).

Litigation Risks

At the hearing, Battles told panel members that under the clause, “if someone gets sent to the West Coast for a conference and someone gets sent to the East Coast for a conference,” one of them could potentially sue the employer, because different opportunities arise.

That type of concern is shared by Carolyn Logue, a lobbyist representing the Washington Retail Association. She told panel members that the clause would create “grey areas that increase the risk for lawsuits” for retailers. Logue supports HB 1447, saying, “employers know what they need to comply, and employees know their rights.”

Regional Cost-Of-Living Variances

HB 1506 also doesn’t account for cost-of-living differences between regions such as Seattle and Spokane, which can influence wage disparities. Under HB 1446, employees who are compared to each other would have to be in the same locale, no larger than a county. The regional comparison would also have to account for the number of nearby cities and local economic growth.

There are several variances that can create the illusion of a wage gap where it doesn’t exist, says Michael Schutzler, CEO of the Washington Technology Industry Association.

He underscored to panel members that, “in our industry, performance is a key factor, as is experience and education, for evaluating a wage differential. These are not addressed in this bill (HB 1506).”

Another difference between the two bills is that under HB 1506, a worker can sue their employer in state and federal court simultaneously. HB 1447 limits potential employee plaintiffs to one court venue at a time.

Beware: Apples To Oranges

Neither bill includes the number of hours worked among their criteria. Forbes contributor Karin Agness wrote that length of work hours is one of the many choices men and women make differently in their careers, “that influence earnings. If we want to have a fruitful discussion about a gender wage gap, we should have it after the comparison is adjusted for those factors.”

The concept of gender pay inequality is questioned by Mark Perry, an American Enterprise Institute scholar, and economics and finance professor at the University of Michigan.

Perry wrote that the claim falsely assumes women get paid less than men for “doing exactly the same work in the exact same occupations and careers, working side-by-side with men on the same job for the same organization, working the same number of hours per week, traveling the same amount of time for work obligations, with the same exact work experience and education, with exactly the same level of productivity…”

A 2015 analysis by Perry also showed that the average man working full-time worked almost two more hours per week than the average woman.